Opinion
November 27, 1995
Appeal from the Supreme Court, Kings County (Feinberg, J.).
Ordered that the judgment is affirmed.
The trial court properly refused to charge manslaughter in the first degree as a lesser included offense of murder in the second degree since there was no reasonable view of the evidence to support submitting the lesser charge to the jury (see, CPL 300.50; People v Glover, 57 N.Y.2d 61; People v Green, 56 N.Y.2d 427). Unrefuted eyewitness testimony established that the defendant pulled out his gun, aimed it at the head of the person with whom he was arguing, and fired a single shot at close range, missing his target but hitting the victim in the head. According to the defendant's statement to the police, he pulled out his gun, stated "you're played out" to the person with whom he was arguing, and fired a single shot. Thus, the trial court properly determined that the evidence did not support a finding that the defendant intended to cause serious physical injury rather than death (see, People v Evans, 192 A.D.2d 671; People v Rielly, 190 A.D.2d 695; People v Green, 143 A.D.2d 768; People v Burke, 73 A.D.2d 627).
The defendant's remaining contentions are without merit. Bracken, J.P., Sullivan, Miller and Florio, JJ., concur.